Employing EU nationals

We assist and advise UK employers, and the EU nationals who they employ, on their visa status.

A brief history of the EU and the UK

You may be aware from previous dealings with European nationals who are full European citizens that such persons do not require visas or permission to take up employment in the UK. Full European citizens have rights of free movement as well as employment and business opportunities in any European member state, and these rights are afforded to them by the Treaty of Rome (and subsequent European treaties).

Various member states of the EU joined at various times. Following the decision by the UK public to leave the EU at some stage in the future, the UK legislation allowing EU nationals to work in the UK will have to be modified or repealed. This, however, is not expected until December 2018.

Other citizens with the same rights as EU nationals

The EEA includes all EU countries and Iceland, Liechtenstein and Norway. It allows them to be part of the EU’s single market and so nationals of these three countries have the rights to employment in the UK as nationals of the other EU states.

Switzerland is neither an EU or EEA member but is part of the single market - this means Swiss nationals have the same rights to live and work in the UK as other EEA nationals.

Some countries acceded to the European Union on 01/05/2004.

The European states (often referred to as the A8 countries) in question are:

Poland

Czech Republic

Estonia

Slovakia

Hungary

Latvia

Lithuania

Slovenia

Cyprus

Malta

From the period 2004 to 2011, nationals of these countries had to apply to the Home Office for permission to work under the worker registration schemes. Now nationals of these countries are treated in the same way as any other European Union citizens.

Similarly, Bulgaria and Romania joined the European Union on 1 January 2007 and were subject to restrictions on taking employment in the UK. The restrictions on Bulgarians and Romanians ceased on 1 January 2014.

The status of European nationals in the UK following the vote by the UK to leave the European Union

The rights of European citizens in the UK in terms of free movement (incorporating employment) are set in The Immigration (European Economic Area) Regulations 2006 as amended. This piece of UK legislation implemented Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the European Union and their family members to move and reside freely within the territory of the member states.

The UK regulations identify which European citizens have a right of residence in the UK (with some close family members – spouse, parents, children etc.) and authorise the issue of residence documentation to confirm the subject’s status. The regulations go on to identify those who have a permanent right of residence and again the documents such persons can be issued.

The documents presently issued by the Home Office are as follows:

A registration certificate: This document is issued to European citizens who are qualified persons under the regulations. Qualified persons are generally those who are workers, students or self-sufficient persons. The latter two categories require the European citizen to show that he/she has private medical insurance and so traditionally have not been popular to apply for. Registration certificates are usually issued for five years at a time.

A residence card: These documents are issued to the family members of European citizens who are not European citizens themselves. For example, a Russian citizen (non-EU citizen) married to a Polish citizen could acquire such a card. Again, the document is issued for a period of five years.

A permanent residence card: These documents are issued when the European citizen has resided in the UK for five years or more and is able to show that they have been a qualified person (or family member of such a person) for the full five-year period. For example, a Polish citizen who has worked continuously for five years in the UK would be entitled to a permanent residence card. It should be noted that it is not possible for a European citizen to apply for British citizenship until the permanent resident’s card has been acquired.

The effect of Brexit in terms of UK immigration

The results of the referendum showed that the UK will likely leave the European Union. There is a degree of uncertainty about what changes will happen and how quickly any changes will take effect. Our view remains however that it is highly unlikely that European workers already established in the UK will be required to leave.

However, European citizens in the UK presently enjoy protection on several issues including the cost of residence documents. An Australian applying for permanent residence presently must pay £2,297 for the visa, whereas a European citizen must pay just £65.

It is therefore our opinion that a consequence of the UK’s exit from the EU will be that in time European citizens will have to pay the same as all other overseas nationals in due course for any documents required. It is also likely that modifications will be made to the law to require UK employers to examine any new residence documents before offering employment to ensure that European citizens apply for the right papers.

It is also our opinion that residence documents issued under the existing arrangements to European citizens will continue to be valid in the UK. Attempting to cancel documents and remove rights already confirmed by the issue of a residence document (or visas in other circumstances) is likely to be fraught with legal difficulties. Those with residence documentation already issued are likely to have a legitimate expectation that they will be permitted to stay in the UK and qualify for the permanent right of residence.

This issue last arose in the UK with a Judicial Review surrounding a change in the immigration rules imposing stricter requirements on those holding existing visas issued under previous rules. The UK government failed ultimately in imposing the stricter rules (decision of the High Court of 8 April 2008, HSMP Forum 2009]0 EWHC 711 (Admin).

Under the existing EU immigration arrangements, it is also possible for European citizens to invite family members to join them in the UK. The same privileges are not afforded to non-European citizens without other strict criteria being met such as showing specific, quite high income. In the case of parents, the non-EU national must show that the parent is either ill or disabled to a degree that the parent is incapable of looking after his/herself and no local care exists. A further consequence of the UK exit from the EU must therefore ultimately be that the immigration advantages enjoyed by European citizens and their family members over and above those afforded to British citizens must cease in due course.

Ultimately, our view is that those European citizens who apply for EU residence documents from the Home Office before any change in law takes place will probably also be unaffected by any changes if they were established in the UK as qualified persons before 24 June 2016. The position for those who arrive in the UK after 24 June 2016 is uncertain.

Those who do come into the UK now exercising rights under the existing treaties will find it difficult to claim that they had an expectation to be able to settle in the UK in the long-term – such persons could therefore be affected by future changes. On the other hand, it is quite possible that the existing free movement rights for European citizens could be incorporated (probably to a lesser degree) into any new UK legislation passed or treaty negotiated and so the ability of some European citizens to come to the UK may be unaffected.

Children born in the UK to European nationals

From 1 January 1983, children born in the UK are not automatically British citizens and the status of the parent must be considered. Where the parents are European citizens, the rules have changed no less than three times in the last 15 years and so children born at different times will have different rights to British citizenship.

At one time, children born in the UK to European citizen parents acquired British citizenship simply where the parent was working at the time and without other residence documentation. A degree of care should therefore be exercised before attempting application for residence documents for children born in the UK because that child could be British already and could apply for a British passport instead.

The rights of children born in the UK to European citizen parents will be unaffected until any change in the law takes place. Equally, we can be certain when a change does take place, as changes to British nationality law cannot be made retroactive, the rights of children born in the UK up to any change will be unaffected.

Steps you and your family should take as European nationals in the UK

It would be prudent for all European citizens and their family members in the UK (whether established before 23 April 2016 or after) to apply for residence documentation from the UK. Applying for these documents is likely to give some security in terms of ongoing stay in the UK and will prevent the need for costly applications in the future.

Enquiries should be made for children born in the UK to European citizens as to whether they can acquire British citizenship.

Where a European citizen resident in the UK wishes to sponsor a family member to join them in the UK, the applications should be lodged sooner rather than later.

We cannot be certain whether European citizens will continue to enjoy any advantages over the citizens of other countries in the future. This will depend on the detail of any future UK immigration legislation and the negotiation of trade deals with the EU when existing arrangements cease to have effect. However, given that the main thrust of the campaign for the UK to leave the EU was based on immigration and the desire for the UK to stop large numbers of European citizens settling in the UK for economic reasons, it seems very unlikely that there will be no tightening of immigration control for European citizens. Only one certainty exists in immigration terms now and that is simply that European citizens living outside the UK presently who meet the requirements of the existing UK domestic immigration rules (work permits, investment, business study, etc.) can be assured of entry to the UK in the future.

No one can predict future world events, and ten years ago, we would not have envisaged any possible UK exit from the EU. However, one thing that we can all draw from this is that where migration is concerned, any citizen from any country (whether European or not) who has moved to the UK should acquire British citizenship at the earliest opportunity. This is the only way to guarantee absolute security of residence in the UK for the future.

Sable International offer a full representation service for all EU nationals who which to secure residence documents or assess eligibility to British citizenship.

Croydon

Australia

Melbourne

Sable International is a trading name of 1st Contact Money Limited (company number 7070528) registered in England and Wales. Sable International is authorised and regulated by the Financial Conduct Authority in the UK (FCA no. 517570), the Financial Services Conduct Authority in South Africa (FSP no. 41900) and holds an Australian Financial Services License issued by ASIC to deal in foreign exchange (AFS License number 335 126).

Please note: Sable International is a trading name of Philip Gamble and Co. Ltd. Philip Gamble and Co. Ltd is registered in the UK with the Office of the Immigration Service Commissioner (OISC) under no. F2001-00004. Our staff based outside of the UK are not regulated by the OISC and may be involved in some client casework. However, they work to the same high standards as our UK staff and clients receive the same service regardless of which office they engage with.